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Jay Austin

Jay Austin
Senior Attorney; Director, Program on the Constitution, Courts, and Legislation
(202) 558-3103

Jay Austin has been at ELI since 1992. He directs the Institute’s Program on the Constitution, Courts, and Legislation, an initiative focusing on the intersection of U.S. constitutional and environmental law and recent trends in the federal courts. In that role, he produces scholarly research and commentary on environmental litigation; key areas of constitutional law, including the Commerce Clause, Fifth Amendment takings, and Article III standing; and on proposals to amend major federal laws like the National Environmental Policy Act and Endangered Species Act.

Austin also helps direct ELI's Ocean Program, has extensive experience with the Institute's international programs, and has served as editor-in-chief of the Environmental Law Reporter. Based in Portland, Oregon, he has local expertise on environmental issues in the Pacific Northwest, and maintains specialties in water pollution law, coastal and ocean law, constitutional law, environmental impact assessment, and procedures for public participation in environmental decisionmaking.

Media Guide


  • Coastal and Ocean Law: coastal zone management, National Ocean Policy, Oil Pollution Act and Gulf of Mexico restoration

  • Environmental Impact Assessment: environmental impact assessment (EIA)—National Environmental Policy Act and issues related to EIA at the federal and state levels

  • Judiciary: environmental law and the judiciary—U.S. Supreme Court and other federal court cases and recent decisions and trends in judicial decisionmaking
  • Law: constitutional environmental law—constitutional law topics that affect environmental law, including the Commerce Clause, “takings” and property rights, “standing” to bring environmental lawsuits, and Tenth and Eleventh Amendments
  • Water: water law—Clean Water Act, wetlands protection, and western water issues


  • J.D., University of Virginia School of Law, 1990
  • B.A., Political Philosophy, James Madison College at Michigan State University, 1985

Selected Publications

Bruce Myers and Jay Austin, "Playing Whack-a-Mole with the Endangered Species Act," ACSblog (Sept. 2015). 

Kathryn Mengerink and Jay Austin, Evaluating Ocean Protection, ELI Policy Brief #9 (2015). 

Brian Korpics, Jay Austin, and Bruce Myers, “Shifting the Debate: In Defense of the Equal Access to Justice Act,” Environmental Law Reporter (Nov. 2013).

Bruce Myers and Jay Austin, “The Commerce Clause: Foundation for U.S. Environmental Law,” in James May (ed.), Principles of Constitutional Environmental Law (American Bar Association/ELI Press, 2011).

Kathryn Mengerink, Adam Schempp, and Jay Austin, Ocean and Coastal Ecosystem-Based Management: Implementation Handbook (Envtl. L. Inst. 2009).

Adam Schempp, Kathryn Mengerink, and Jay Austin, Expanding the Use of Ecosystem-Based Management in the Coastal Zone Management Act (Envtl. L. Inst. 2009).

Jay Austin and Bruce Myers, Anchoring the Clean Water Act: Congress’s Constitutional Sources of Power to Protect the Nation’s Waters, American Constitution Society Issue Brief (Sept. 2007).

Brief of Environmental Law Institute as Amicus Curiae (co-author), Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, Nos. 04-1043, -1384 (U.S. filed Jan. 2006).

Limiting State Experimentation Under the “Dormant” Commerce Clause and The Eleventh Amendment, in Redefining Federalism: Listening to the States in Shaping “Our Federalism” (Envtl. L. Inst. 2004).

Jay E. Austin, John M. Carter II, Bradley D. Klein & Scott E. Schang, Judging NEPA: A “Hard Look” at Judicial Decisionmaking under the National Environmental Policy Act, (Envtl. L. Inst. 2004).

Jay E. Austin & Scott Schang, The Rise (and Fall?) of Fundamentalist Federalism, The Environmental Forum, Sept./Oct. 2004.